BARRAL VS. BARRAL (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the custody determination for abuse of discretion, noting that "[t]he district court has broad discretion to determine child custody matters, and this court will not disturb those custody determinations absent a clear abuse of discretion." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). The court presumes the district court properly exercised its discretion in determining the child's best interest. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). For modification of physical custody, the movant must show that "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 983 (2022) (quoting Ellis, 123 Nev. at 150, 161 P.3d at 242). Applying this test, the court held that Dustin failed to establish the first factor. The district court had found—and Dustin did not challenge—that Megan has been the children's sole physical custodian since his 2013 incarceration, and that his alleged change in circumstances (release on parole) had not yet occurred, rendering the motion premature. Because Dustin did not satisfy the first modification factor, the court discerned no abuse of discretion in the denial. On legal custody, the court applied the framework that "[l]egal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the child's health, education, and religious upbringing." Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d at 984. Joint legal custody is presumed to be in the child's best interest if certain conditions are met. NRS 125C.002(1). That presumption is overcome when the court finds the parents are unable to communicate, cooperate, and compromise in the best interest of the child. Rivero, 125 Nev. at 420, 216 P.3d at 221. Applying that framework, the court noted the district court's findings that Dustin had not seen the children since 2013 (when they were 5 and 3, now 15 and 13) and that his incarceration impeded his ability to communicate effectively with Megan or know the children's current needs. The district court found that "[r]etaining legal custody with [Megan] at this time does not impede [Dustin's] relationship with the children, and his request can be revisited once [he] is paroled and has a more open line of communication and understanding of the needs of the children." The Court of Appeals concluded the district court did not abuse its discretion in denying joint legal custody. See Rivero, 125 Nev. at 420, 216 P.3d at 221; see also Ellis, 123 Nev. at 149, 161 P.3d at 241. The court also stated that because the denial was primarily based on prematurity, nothing in the order prohibits Dustin from refiling his motion to modify custody at a more appropriate time. Remaining arguments were considered and found either not to present a basis for relief or not necessary to reach.

In plain language

Dustin and Megan Barral divorced in 2012 and had two children together. In the divorce, the court gave Megan sole legal custody (the authority to make major decisions for the children) and primary physical custody (where the children mainly live), while Dustin was to have parenting time. Shortly after the divorce, Dustin was arrested, and he has been incarcerated since 2013. Because of that, he has not been able to exercise his parenting time. In 2022, Dustin asked the court to change the custody arrangement. He wanted joint legal custody and to resume parenting time. His main reason was that he was scheduled to be released on parole in September 2023. The trial court turned him down for two reasons: first, that his request was premature because the change he was pointing to (his parole release) had not yet happened; and second, that reunifying with the children while he was still in prison would not be in the children's best interest. Dustin appealed. He argued the trial court should have considered that the children could start the process of reconnecting with him, and that he could share legal decision-making even while incarcerated. The Court of Appeals affirmed the trial court's decision. Under Nevada law, a parent asking to change physical custody must show two things: (1) a substantial change in circumstances affecting the child's welfare, and (2) that the change would serve the child's best interest. The court found Dustin had not met the first requirement, because his hoped-for change (parole) had not yet occurred, making his motion premature. Since he failed on the first requirement, the court did not need to go further on physical custody. On the request for joint legal custody, the court found that Dustin had not seen the children since 2013 (when they were 5 and 3, and now 15 and 13), and that his incarceration made it hard for him to communicate with Megan or understand the children's current needs. The court noted that keeping legal custody with Megan for now did not block Dustin's relationship with the children and that his request could be revisited once he is paroled. Importantly, the court explained that because the denial rested largely on the motion being premature, nothing in the order prevents Dustin from refiling his motion to modify custody at a more appropriate time.